“Brother, can you spare a disparaging remark?”

Blog posts and commentary on broker web sites

Just read an article on Realty Times that touches on the issue of blog posts and commentary on web sites hosted by brokers. A similar issue is making the rounds on the NAR legal counsel discussion group. Victor Lund of WAVgroup also prepared a presentation that I pinch-presented for him at the attorney meeting at the MLS Connections conference in Portland in April; it addressed this and some other ‘Web 2.0’ legal issues facing the industry.

Based on what I’ve read, I think we have at least four separate issues:

One is where a blogging broker makes negative remarks about another broker. We would handle these matters under Article 15 of the REALTOR® Code of Ethics, if the statements are false or misleading. Examples:

1. “Joe Broker tried to screw my clients by holding onto earnest money that should have been returned.”
2. “Joe Broker is very difficult to work with because he is too aggressive in negotiations.”

Two is where a consumer on one broker’s site makes negative remarks about another broker. Article 15 still applies, and the broker operating the site would have an obligation to take down the negative remarks if they are false or misleading. (I’m not sure what the process would be for learning that.) Examples:

3. “Joe Broker tried to screw us by holding onto earnest money that should have been returned.”

4. Same as example 2, but comment made by consumer.

Three is where a blogging broker makes negative remarks about another broker’s listing. This seems like an issue under Article 12 of the CoE, provided the statements are not “honest and truthful.” Example:

5. “I showed 123 Elm last week, and I’ll advise clients not to bother in the future: unwashed dishes in the sink, basement smelling of cat urine, shower covered with mildew.”

Four is where a consumer on one broker’s site makes negative remarks about another broker’s listing. Not sure whether the Code addresses this directly (is there a standard under Article 12 corresponding to 15-2?) Example:

6. “My broker showed me 123 Elm last week, and it was terrible: unwashed dishes in the sink, basement smelling of cat urine, shower covered with mildew.”

It’s also possible to have a hybrid that appears both to criticize the listing broker and the listing, and such a comment could be made either by a broker on her blog or a consumer visiting another broker’s site. Example:

7. “Considering the sorry state of this property, it was unprofessional for listing broker to advise a list price of $300k.”

Note that the seller’s opt-out of ‘third-party commentary’ on VOWs (Section II.5.c of the VOW Policy) affects only example 6 and (depending on who made the comment) example 7. The VOW Policy provides that a “Participant’s VOW may communicate the Participant’s professional judgment concerning any listing” as long as it is not factually false. In other words, a broker displaying another broker’s listing can criticize the listing (honestly and truthfully) on her own VOW or web site, without violating the Code or the MLS rules, I think, even if the seller has opted out of third-party commentary on VOWs. (Based on this, I read “third-party commentary” to mean someone other than listing broker or seller (the “first party”?) and other than displaying broker (the “second party”?).)

I’m curious if folks would be willing to offer some examples of actual posts that we can look at and discuss. To do so, send me an email with the address of the “offending” post; I’d prefer not to point at specific web pages here on MLSTesseract, because (1) I’m not interested in bringing the ‘law’ down on anyone’s head and (2) comments often get deleted or edited on the source pages, and I don’t want to refer to a “problem” on a site that’s already corrected it.

-Brian